As the federal government defends a rule in appeals court Monday prohibiting health care providers who take federal money for family planning services from referring patients to abortion providers, some states that haven’t complied are making plans for continuing without the program.

An 11-judge panel of the Ninth Circuit will hear arguments in San Francisco on Monday about whether the rule should be in effect during court challenges brought by 22 states and family planning providers like Planned Parenthood.

Opponents call it the gag rule because it bars grantees from the federal program known as Title X from referring for or providing abortions. A three-judge panel of the appeals court allowed the rule to go into effect in a June ruling. The Ninth Circuit case consolidates separate suits brought in California, Oregon and Washington.

Washington is one of six states that pulled out of the Title X program last month rather than comply with the new regulation, which state officials said conflicted with a state law guaranteeing access to abortion. Illinois, Maryland, Massachusetts, Oregon and Vermont have also exited the program, as have nonprofit providers that cover the entire states of Maine and Utah.

[Planned Parenthood exits Title X program over gag rule]

In total, nearly 20 percent of grantees, both government and nonprofit, have left the program, according to Jessica Marcella, the vice president of advocacy and communications for the National Family Planning and Reproductive Health Association, one of the groups challenging the rule.

Those states and providers say the rule has made providing family planning services impossible. Anti-abortion groups and states that support the rule have said it doesn’t interfere with providing services under Title X, which doesn’t allow for funding abortions anyway.

The states and providers that have withdrawn have taken measures to continue services in the short term, but may not be able to recover without long-term federal funds, Marcella said.

[Court allows administration family planning rule]

“The very fabric of the safety net has been frayed, potentially beyond repair at this point,” she said. “Long-term sustainability for these safety-net health centers  . . . [is] not necessarily a reality without the essential resources that have been provided by the federal government.”

Washington is able to use state funds to continue funding providers into March 2020, said Lacy Fehrenbach, assistant secretary of the Washington Department of Health.

Gov. Jay Inslee, a Democrat, has said he’s seeking to replace the $4 million in federal funding with state dollars to continue service beyond that time. But Washington, like most states, is required to run a balanced budget, so adding state funding for family planning programs would require either cuts to other programs or increased revenues.

Filling the gap

If the state Legislature is unable to fill that gap, the state would have to change its eligibility requirements for Title X, the services available or both, Fehrenbach said.

Planned Parenthood of Utah, which until it withdrew from the program was the sole Title X grantee in the state and received about $2 million annually, has continued to provide subsidized services even without the federal money. The organization has been able to continue because of additional donations since President Donald Trump was elected, CEO Karrie Galloway said.

But that’s not a sustainable model, she said, and the organization may have to start charging for certain services, she said. “The donors are incredibly generous but they’re not giving $2 million extra,” Galloway said.

Such examples could be part of the arguments of groups and states challenging the rule to show the imminent harm caused by it — a condition for winning a temporary freeze.

But those on the other side of the case say it’s not the rule that’s causing the harm.

The Department of Health and Human Services has said the intent of the rule was not to stop funding for Title X. Ohio and 12 other states wrote a brief in the case saying the rule didn’t create a “barrier to those genuinely interested in promoting Title X’s mission, rather than using Title X as an indirect source of abortion funding.”

The states and providers made the decision to withdraw rather than comply with the rule, said Rachel Morrison, litigation counsel at anti-abortion group Americans United for Life.

“It doesn’t make sense that the plaintiffs could hold the government hostage,” Morrison said. “Obviously, if someone leaves, there could be harm. But the issue is: Is the harm caused by the regulation or something we can attribute to the regulation itself?”

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